Sunday, August 26, 2007

Not a Killer

12:00 AM CDT on Sunday, August 26, 2007

Kenneth Foster was a robber. He was a drug user. He was a teenager making very bad decisions.

He is not an innocent man.

But Mr. Foster is not a killer.

Still, the State of Texas plans to put him to death Thursday.

Ours is the only state in the country to apply the "law of parties" to capital cases, allowing accomplices to pay the ultimate penalty for a murder committed by another. Mr. Foster was driving his grandfather's rental car when one of his partners in crime killed Michael LaHood.

That night in 1996, Mr. Foster and three of his buddies appeared to be looking for trouble. They robbed a few folks, chugged some beers and smoked marijuana. But, as all four have testified, murder was never part of the plan. Mr. Foster and two others sat in the car nearly 90 feet away when the fatal shot was fired.

They had followed an attractive woman into an unfamiliar neighborhood, where they encountered her boyfriend, Mr. LaHood. The other passengers have testified that they had no designs on robbing – let alone shooting – him. And the admitted triggerman said that his friends did not know what he was doing when he approached the victim.

But using the law of parties, prosecutors argued that Mr. Foster, who was 19 at the time, either intended to kill or "should have anticipated" a murder. For this lack of foresight, he has been sentenced to death.

The death penalty, proponents argue, is the appropriate punishment for the worst of the worst criminals. They express confidence that death row inmates are guilty beyond a reasonable doubt.

But the case against Mr. Foster falls far short on both counts.

A 19-year-old robber/getaway driver cannot be classified as one of Texas' most dangerous, murderous criminals. On this point, even prosecutors agree: Mr. Foster did not kill anyone.

By applying the law of parties to this capital case, prosecutors are asking jurors to speculate on whether he should have anticipated the murder. Conjecture isn't nearly good enough when a defendant's life is on the line.

And relying on a mind-reading jury leaves plenty of room for reasonable doubt.

Several other states have imposed or are considering a moratorium on executions, relying instead on life without parole as a tough alternative. Even though Texas juries now have the option of life without parole, our state continues to broadly impose capital punishment.

The unfair application of the death penalty and the possibility that an innocent man could be executed compelled this newspaper to voice opposition to capital punishment. This case only reinforces our belief that state-sanctioned death is often arbitrary.

While Mr. Foster's execution date approaches, the two passengers from his car sit in prison with life sentences. His only hope for a reprieve lies with the Texas Board of Pardons and Paroles and the governor.

This case raises serious questions about whether state leaders are comfortable with this degree of ambiguity in death cases. We aren't.

Mr. Foster is a criminal. But he should not be put to death for a murder committed by someone else.WHAT YOU CAN DO

Texas is the only state that applies the "law of parties" to capital cases, allowing accomplices who "should have anticipated" a murder to receive the death penalty. Kenneth Foster is scheduled to die Thursday under this provision. You can urge the governor to stop the execution.